ANALYSIS: Nondelegation Doctrine May be Ready for Major Role

Much speculation has occurred about what might replace Chevron deference after the US Supreme Court rules in Loper Bright and Relentless. The major questions doctrine already provides an alternate path around Chevron, but the nondelegation doctine—an old doctrine that the Supreme Court hasn’t used to deny agency authority in quite some time—might gain new importance too.

A Slumbering Doctrine

The nondelegation doctrine states that Congress can’t delegate its legislative powers to other branches unless there’s an “intelligible principle” for the delegation. It’s based on the concept of preserving the separation of powers between the coordinate ...